Opinion
No. C 02-1821 MMC (PR)
July 1, 2002
ORDER OF DISMISSAL
Frank J. Howard ("plaintiff"), currently incarcerated at San Quentin State Prison ("SQSP"), has filed this pro se civil rights complaint pursuant to 42 U.S.C. § 1983. Plaintiff alleges that when he was moved to a different cell, defendant, a prison employee, refused to grant his request, based on back injuries, to be moved to the lower bunk. Plaintiff alleges that he fell off the upper bunk and further injured his back.
By separate order, plaintiff has been granted leave to proceed in forma pauperis.
DISCUSSION A. Standard of Review
A federal court must conduct a preliminary screening in any case in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek monetary relief from a defendant who is immune from such relief. See id. § 1915A(b)(1), (2). Pro se pleadings must, however, be liberally construed. See Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated and (2) that the alleged violation was committed by a person acting under color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988).
B. Legal Claims
Deliberate indifference to serious medical needs violates the Eighth Amendment's proscription against cruel and unusual punishment. See Estelle v. Gamble, 429 U.S. 97, 104 (1976); McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds, WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997). A determination of "deliberate indifference" involves an examination of two elements: the seriousness of the prisoners medical need and the nature of the defendant's response to that need. See McGuckin, 974 F.2d at 1059. In order for deliberate indifference to be established, there must be a purposeful act or failure to act on the part of the defendant and resulting harm. See id. at 1060. A prison official is deliberately indifferent if he that a prisoner faces a substantial risk of serious harm and disregards that risk by failing to take reasonable steps to abate it. See Farmer v. Brennan, 511 U.S. 825, 837 (1994). A claim of mere negligence related to medical problems is not enough to make out a violation of the Eighth Amendment. Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981).
Plaintiff's allegations do not state a cognizable claim because he alleges no more than defendant's negligence. Plaintiff does not allege that defendant knew plaintiff faced a serious risk of harm from being in an upper bunk, nor does plaintiff allege that his assignment to an upper bunk was medically necessary. Plaintiff alleges he told defendant that he needed a lower bunk because of his back injuries. Plaintiffs however, is not a doctor. Similarly, according to the complaint, defendant is a sergeant, not a medical professional. There is no allegation or indication that plaintiff had previously injured his back due to being in an upper bunk, let alone that defendant was aware of any such incident. After the fall, plaintiff received prompt medical attention, including a doctor's examination, x-rays, pain medication, crutchs and a lower bunk. As discussed above, for defendant's conduct to rise to the level of a constitutional violation, defendant would have to have known of the risk of harm to plaintiff. Such knowledge cannot be inferred from the circumstances alleged. Consequently, the complaint fails to state a claim under § 1983. Because plaintiffs factual allegations establish the absence of a constitutional violation, there is no indication that the claims could be cured by amendment. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc).
CONCLUSION
For the reasons expressed, plaintiffs complaint is DISMISSED.
All pending motions are terminated. The clerk shall close the file.
IT IS SO ORDERED.
JUDGMENT IN A CIVIL CASE
Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered.
IT IS ORDERED AND ADJUDGED plaintiff's complaint is DISMISSED.
All pending motions are TERMINATED.